74th OREGON LEGISLATIVE ASSEMBLY--2007 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 354
Senate Bill 167
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for Real Estate Agency)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Clarifies authority of Real Estate Agency to issue real estate
licenses only to individuals.
Defines 'nonlicensed individual' for purposes of distinguishing
who may conduct professional real estate activity or engage in
management of rental real estate. Conforms language to more
effectively use defined terms.
A BILL FOR AN ACT
Relating to real estate activity; creating new provisions; and
amending ORS 9.160, 31.350, 94.977, 270.120, 305.230, 446.676,
646.382, 646.605, 674.100, 696.010, 696.020, 696.022, 696.026,
696.030, 696.110, 696.205, 696.241, 696.301, 696.315, 696.365,
696.375, 696.398, 696.511, 696.600, 696.609, 696.710, 696.730,
696.775, 696.800, 696.990 and 744.056.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 696.010 is amended to read:
696.010. As used in ORS 696.010 to 696.495, 696.600 to 696.785,
696.800 to 696.870, 696.990 and 696.995, unless the context
requires otherwise:
(1) 'Agency' means the Real Estate Agency.
(2) 'Associated with' means to be employed, engaged or
otherwise supervised by, with respect to the relationship between
a real estate broker and a principal real estate broker.
(3) 'Bank' includes any bank or trust company, savings bank,
mutual savings bank, savings and loan association or credit union
that maintains a head office or a branch in this state in the
capacity of a bank or trust company, savings bank, mutual savings
bank, savings and loan association or credit union.
(4)(a) 'Branch office' means a business location { + , + }
other than the main office designated under ORS 696.200 (1),
where professional real estate activity is regularly conducted or
{ - which - } { + that + } is advertised to the public as a
place where such business may be regularly conducted.
(b) Model units or temporary structures used solely for the
dissemination of information and distribution of lawfully
required public reports shall not be considered branch offices. A
model unit means a permanent residential structure located in a
subdivision or development used for such { + dissemination
and + } distribution { - and dissemination - } , so long as the
unit is at all times available for sale, lease, lease option or
exchange.
(5) 'Commissioner' means the Real Estate Commissioner.
(6) 'Compensation' means any fee, commission, salary, money or
valuable consideration for services rendered or to be rendered as
well as the promise thereof and whether contingent or otherwise.
(7) 'Competitive market analysis' means a method or process
used by a real estate licensee in pursuing a listing agreement or
in formulating an offer to acquire real estate in a transaction
for the sale, lease, lease-option or exchange of real estate. The
objective of competitive market analysis is a recommended
listing, selling or purchase price or a lease or rental
consideration. A competitive market analysis may be expressed as
an opinion of the value of the real estate in a contemplated
transaction. Competitive market analysis may include but is not
limited to an analysis of market conditions, public records, past
transactions and current listings of real estate.
(8) 'Letter opinion' { - means a document that expresses a
real estate licensee's conclusion regarding a recommended
listing, selling or purchase price or a rental or lease
consideration of certain real estate and that results from the
licensee's competitive market analysis. The commissioner by rule
shall specify the minimum contents of a letter opinion, including
but not limited to the distinction between a letter opinion and a
real estate appraisal - } { + has the meaning given the term in
section 2 of this 2007 Act + }.
(9) 'Management of rental real estate' means:
(a) Representing the owner of real estate in the rental or
lease of the real estate and includes but is not limited to:
(A) Advertising the real estate for rent or lease;
(B) Procuring prospective tenants to rent or lease the real
estate;
(C) Negotiating with prospective tenants;
(D) Accepting deposits from prospective tenants;
(E) Checking the qualifications and creditworthiness of
prospective tenants;
(F) Charging and collecting rent or lease payments;
(G) Representing the owner in inspection or repair of the real
estate;
(H) Contracting for repair or remodeling of the real estate;
(I) Holding trust funds or property received in managing the
real estate and accounting to the owner for the funds or
property;
(J) Advising the owner regarding renting or leasing the real
estate;
(K) Providing staff and services to accommodate the tax
reporting and other financial or accounting needs of the real
estate;
(L) Providing copies of records of acts performed on behalf of
the owner of the real estate; and
(M) Offering or attempting to do any of the acts described in
this paragraph for the owner of the real estate; or
(b) Representing a tenant or prospective tenant when renting or
leasing real estate and includes but is not limited to:
(A) Consulting with tenants or prospective tenants about
renting or leasing real estate;
(B) Assisting prospective tenants in renting or leasing real
estate;
(C) Assisting prospective tenants in qualifying for renting or
leasing real estate;
(D) Accepting deposits or other funds from prospective tenants
for renting or leasing real estate and holding the funds in trust
for the prospective tenants;
(E) Representing tenants or prospective tenants renting or
leasing real estate; and
(F) Offering or attempting to do any of the acts described in
this paragraph for a tenant or prospective tenant.
{ + (10) 'Nonlicensed individual' means an individual:
(a) Who has not obtained a real estate license; or
(b) Whose real estate license is lapsed, expired, inactive,
suspended or revoked. + }
{ - (10) - } { + (11) + } 'Principal real estate broker'
means an individual who { - is licensed - } { + holds an
active license + } as a principal real estate broker and who
employs, engages or supervises { + the professional real estate
activity of + } another real estate licensee.
{ - (11) - } { + (12) + } 'Professional real estate
activity' means any of the following actions, when engaged in for
another and for compensation or with the intention or in the
expectation or upon the promise of receiving or collecting
compensation, by { - any person - } { + an individual + }
who:
(a) Sells, exchanges, purchases, rents or leases real estate
{ - . - } { + ; + }
(b) Offers to sell, exchange, purchase, rent or lease real
estate { - . - } { + ; + }
(c) Negotiates, offers, attempts or agrees to negotiate the
sale, exchange, purchase, rental or leasing of real estate
{ - . - } { + ; + }
(d) Lists, offers, attempts or agrees to list real estate for
sale { - . - } { + ; + }
(e) Offers, attempts or agrees to perform or provide a
competitive market analysis or letter opinion, to represent a
taxpayer under ORS 305.230 or 309.100 or to give an opinion in
any administrative or judicial proceeding regarding the value of
real estate for taxation { - . Such - } { + , except when
the + } activity { + is + } performed by a state certified
appraiser or state licensed appraiser { - is not professional
real estate activity. - } { + ; + }
(f) Auctions, offers, attempts or agrees to auction real estate
{ - . - } { + ; + }
(g) Buys, sells, offers to buy or sell or otherwise deals in
options on real estate { - . - } { + ; + }
(h) Engages in management of rental real estate { - . - }
{ + ; + }
(i) Purports to be engaged in the business of buying, selling,
exchanging, renting or leasing real estate { - . - } { + ; + }
(j) Assists or directs in the procuring of prospects,
calculated to result in the sale, exchange, leasing or rental of
real estate { - . - } { + ; + }
(k) Assists or directs in the negotiation or closing of any
transaction calculated or intended to result in the sale,
exchange, leasing or rental of real estate { - . - } { + ; + }
(L) Except as otherwise provided in ORS 696.030 (1)(L),
advises, counsels, consults or analyzes in connection with real
estate values, sales or dispositions, including dispositions
through eminent domain procedures { - . - } { + ; + }
(m) Advises, counsels, consults or analyzes in connection with
the acquisition or sale of real estate by an entity if the
purpose of the entity is investment in real estate { - . - }
{ + ; or + }
(n) Performs real estate marketing activity as described in ORS
696.600.
{ - (12) - } { + (13) + } 'Real estate' includes leaseholds
and licenses to use including, but not limited to, timeshare
estates and timeshare licenses as defined in ORS 94.803, as well
as any and every interest or estate in real property, whether
corporeal or incorporeal, whether freehold or nonfreehold,
whether held separately or in common with others and whether the
real property is situated in this state or elsewhere.
{ - (13) - } { + (14) + } 'Real estate broker' means
{ - a person - } { + an individual + } who engages in
professional real estate activity and who { - is licensed - }
{ + holds an active license + } as a real estate broker.
{ - (14) - } { + (15) + } 'Real estate licensee' means
{ + an individual who holds an active license as + } a real
estate broker, principal real estate broker or real estate
property manager.
{ - (15) - } { + (16) + } 'Real estate property manager'
means a real estate licensee who is authorized to engage in
management of rental real estate.
{ - (16) - } { + (17) + } 'Registered business name' means
a name registered with the Real Estate Agency under which the
{ - person - } { + individual + } registering the name engages
in professional real estate activity.
{ - (17) - } { + (18) + } 'Sole practitioner' means a real
estate broker conducting professional real estate activity not in
conjunction with other real estate brokers or principal real
estate brokers.
SECTION 2. { + Section 3 of this 2007 Act is added to and made
a part of ORS 696.010 to 696.495. + }
SECTION 3. { + (1) As used in this section, 'letter opinion '
means a document that expresses a real estate licensee's
conclusion regarding a recommended listing, selling or purchase
price or a rental or lease consideration of certain real estate
and that results from the licensee's competitive market analysis.
(2) The Real Estate Commissioner by rule shall specify the
minimum contents of a letter opinion, including but not limited
to the distinction between a letter opinion and a real estate
appraisal. + }
SECTION 4. ORS 696.020 is amended to read:
696.020. { + (1) The Real Estate Agency may issue a real
estate license only to an individual. + }
{ - (1) - } { + (2) + } { - No person shall - } { + An
individual may not + } engage in, carry on, advertise or purport
to engage in or carry on professional real estate activity, or
act in the capacity of { - , - } a real estate
licensee { + , + } within this state { - without first
obtaining a - } { + unless the individual holds an active + }
license as provided for in this chapter.
{ - (2) - } { + (3) + } A real estate licensee { - shall
be - } { + is + } bound by and subject to the requirements of
ORS 696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.870,
696.990 and 696.995 { - in - } { + while:
(a) + }Engaging in { - any - } professional real estate
activity { + ; + } or
{ + (b) + } { - while - } Acting in the licensee's own
behalf in the { - offer to, negotiations for, or - } sale,
exchange, lease option or purchase of real estate { + the offer
or negotiations for the sale, exchange, lease option or purchase
of real estate + }.
SECTION 5. ORS 696.022 is amended to read:
696.022. (1) The Real Estate Agency shall establish by rule a
system for licensing real estate brokers, principal real estate
brokers and real estate property managers. The system shall
establish, at a minimum:
(a) The form and content of applications for licensing under
each category of real estate professional licensed by the agency;
(b) A licensing examination for each category of license;
(c) Schedules and procedures for issuing and renewing licenses;
(d) The term of a license in each category; and
(e) Terms and conditions under which the license of a real
estate licensee must be returned or transferred to the Real
Estate Commissioner for purposes including, but not limited to,
inactivation, suspension or termination of the license.
(2)(a) A real estate broker may engage in { - all of the
professional activities of a real estate broker described in this
chapter - } { + professional real estate activity + }. A real
estate broker may not employ, engage or { - otherwise - }
supervise the professional real estate { - activities - }
{ + activity + } of another real estate { - broker or
principal real estate broker - } { + licensee + }.
(b) In order to qualify for a real estate broker's license, an
applicant must furnish proof satisfactory to the commissioner
that the applicant has successfully completed the basic real
estate broker's educational courses and the examination required
by rule of the agency. Proof of completion of all required
courses must be provided at the time of applying for the license.
(c) A real estate broker may conduct professional real estate
{ - activities - } { + activity + } as a sole practitioner
after:
(A) The { - person - } { + individual + } has acquired
three years of active experience as a real estate broker; or
(B) The { - person - } { + individual + } has acquired
three years of active experience as a real estate salesperson as
defined in ORS 696.025 (1999 Edition) and has successfully
completed the real estate broker's examination required by rule
of the agency.
(3)(a) A principal real estate broker may engage in { - all
of the professional activities of a real estate broker described
in this chapter - } { + professional real estate activity + }.
A principal real estate broker may conduct professional real
estate { - activities - } { + activity + } in conjunction with
other real estate brokers or principal real estate brokers. In
addition, a principal real estate broker { - may - }
{ + must + } employ, engage { - and otherwise - } { + or + }
supervise the professional real estate { - activities of - }
{ + activity of another + }real estate { - brokers or
principal real estate brokers - } { + licensee + }.
(b) In order to qualify for a principal real estate broker's
license, an applicant must meet the requirements of subsection
(2)(b) of this section and must furnish proof satisfactory to the
commissioner that the applicant has successfully completed the
brokerage administration and sales supervision course, as
required by agency rule, and has:
(A) Three years of active experience as a licensed real estate
broker; or
(B) Three years of active experience as a real estate
salesperson as defined in ORS 696.025 (1999 Edition) and has
successfully completed the real estate broker's examination
required by rule of the agency.
(4) In order to qualify for a real estate property manager's
license, an applicant must furnish proof satisfactory to the
commissioner that the applicant has successfully completed
courses in the legal aspects of real estate, real estate property
management and accounting, bookkeeping and trust accounting
practices. The applicant also must have successfully completed a
real estate property manager's license examination prescribed by
rule of the agency. Proof of completion of all required courses
must be provided at the time of applying for the license.
(5)(a) A license for a real estate broker, principal real
estate broker or real estate property manager shall be granted
only to { - a person - } { + an individual + } who is
trustworthy and competent to conduct professional real estate
activity in a manner that protects the public interest. As a
condition of licensing, the commissioner may require
{ - such - } proof of competence and trustworthiness
{ - as - } { + that + } the commissioner deems necessary to
protect the public interest.
(b) In implementing this subsection, the commissioner shall
require fingerprints and criminal offender information of an
applicant for initial licensing and may require fingerprints and
criminal offender information of an applicant for license
renewal. Fingerprints acquired under this subsection may be used
for the purpose of requesting a state or nationwide criminal
records check under ORS 181.534.
(6) A license may be issued under this section only to
{ - persons who are - } { + an individual who is + } 18 years
of age or older.
(7) In order to qualify for a real estate broker's license, a
real estate salesperson licensed in another state or country must
successfully complete a course of study and pass a real estate
broker's license examination, both as prescribed by agency rule.
(8) In order to satisfy the educational requirements under
subsections (2) to (4) and (7) of this section, a course must be
approved by the commissioner. The commissioner shall determine
the final examination score acceptable as evidence of successful
completion for each required course.
(9) The Real Estate Board may determine that an applicant for a
principal real estate broker's license or a real estate broker's
license has experience related to professional real estate
activity that is equivalent to the experience required under
subsection (2) or (3) of this section.
SECTION 6. ORS 696.026 is amended to read:
696.026. (1) A real estate broker or principal real estate
broker may conduct professional real estate activity under the
broker's name, a registered business name or a name prescribed by
agency rule. The business name under which a broker conducts
professional real estate activity has no license standing
independent of the broker.
(2) The agency by rule shall adopt a registration system for
business names. The system shall allow the registration of any
branch office of either a sole practitioner or a principal real
estate broker.
(3) A real estate broker or principal real estate broker
operating under a business name registered by the broker need not
be an owner or officer of any organization otherwise lawfully
entitled to use the registered business name or have an ownership
interest in the registered name. However, all professional real
estate activity conducted by or on behalf of the broker must be
conducted under the business name registered by the broker.
(4) A real estate broker or principal real estate broker may
register two or more business names if the business names are for
affiliated or subsidiary business organizations. If a real estate
broker or principal real estate broker registers the business
names for two or more affiliated or subsidiary business
organizations, the broker may conduct professional real estate
activity separately under each business name. A real estate
broker or principal real estate broker must supervise and control
the professional real estate activity conducted under the
broker's name or registered business name.
(5) A real estate broker employed, engaged or supervised by a
principal real estate broker for required training and
supervision by the principal real estate broker may have an
ownership interest in any business through which the principal
broker conducts professional real estate activity, but may not
control or supervise the professional real estate activity of the
principal broker and may not interfere with or be responsible for
the training and supervision of any other broker.
(6) A nonlicensed { - person - } { + individual + } may
have an ownership interest in any business through which a real
estate broker or principal real estate broker engages in
professional real estate activity, but may not control or
supervise the professional real estate activity of any real
estate broker or principal real estate broker licensed to control
or supervise the professional real estate activity of such
business.
(7) Two or more real estate brokers operating under the same
registered business name who do not exercise any administrative
or supervisory control over one another are solely responsible
for their own professional real estate activity.
(8) Notwithstanding any other provision of ORS 696.010 to
696.495, 696.600 to 696.785, 696.800 to 696.870, 696.990 and
696.995, a broker associated with a principal broker may create a
corporation, limited liability company, limited liability
partnership or any other lawfully constituted business
organization for the purpose of receiving commission payments
from the principal broker. A business organization created under
this subsection may not be licensed under ORS 696.022 or conduct
in its own name professional real estate activity requiring a
real estate license.
SECTION 7. ORS 696.030 is amended to read:
696.030. (1) ORS 696.010 to 696.375, 696.392, 696.395 to
696.430, 696.490, 696.600 to 696.785, 696.990 and 696.995 do not
apply to, and the term 'real estate licensee' does not include:
(a) A nonlicensed { - regular - } { + individual who is
a + } full-time employee of a single owner of real estate whose
real estate activity involves the real estate of the employer
and:
(A) Is incidental to the employee's normal, nonreal estate
activities; or
(B) Is the employee's principal activity, but the employer's
principal activity or business is not the sale, exchange, lease
option or acquisition of real estate.
(b) A { - nonlicensed - } person { - acting - } { + that
acts + } as attorney in fact under a duly executed power of
attorney from the owner or purchaser authorizing the supervision
of the closing of or supervision of the performance of a contract
for the sale, leasing or exchanging of real estate if the power
of attorney was executed prior to July 1, 2002, in compliance
with the requirements of law at the time of execution or if:
(A) The power of attorney is recorded in the office of the
recording officer for the county in which the real estate is
located;
(B) The power of attorney specifically describes the real
estate; and
(C) The person does not use the power of attorney as a device
to engage in professional real estate activity without obtaining
the necessary real estate license.
(c) A { - nonlicensed - } person { - acting - } { + that
acts + } as attorney in fact under a duly executed power of
attorney in which the authorized agent is the spouse of the
principal, or the child, grandchild, parent, grandparent,
sibling, aunt, uncle, niece or nephew of the principal or of the
spouse of the principal, authorizing real estate activity if the
power of attorney is recorded in the office of the recording
officer for the county in which the real estate to be sold,
leased or exchanged is located.
(d) { + A nonlicensed individual who is + } an attorney at law
rendering services in the performance of duties as an attorney at
law.
(e) A { - person acting - } { + nonlicensed individual who
acts + } in the
{ - person's - } { + individual's + } official capacity as a
receiver, a conservator, a trustee in bankruptcy, a personal
representative or a trustee, or a regular salaried employee of
the trustee, acting under a trust agreement, deed of trust or
will.
(f) A { - person performing - } { + nonlicensed individual
who performs + } an act of professional real estate activity
under order of a court.
(g) A nonlicensed { + individual who is a + } regular
full-time employee of a single { - nonlicensed - }
corporation, partnership, association or { + nonlicensed + }
individual owner of real property acting for the corporation,
partnership, association or { + nonlicensed + } individual
{ + owner + } in the rental or management of the real property,
but not in the sale, exchange, lease option or purchase of the
real property.
(h) { + A nonlicensed individual who is + } a registered
professional engineer or architect rendering services in
performance of duties as a professional engineer or architect.
(i) A nonlicensed individual { + who is + } employed by a real
estate broker or principal real estate broker and
{ - acting - } { + who acts + } as a manager for real estate
if the real estate activity of the nonlicensed individual is
limited to negotiating rental or lease agreements, checking
tenant and credit references, physically maintaining the real
estate, conducting tenant relations, collecting the rent,
supervising the premises' managers and discussing financial
matters relating to management of the real estate with the owner.
(j) A { - person, or an employee of the person, selling or
leasing - } { + nonlicensed individual who sells or leases + }
cemetery lots, parcels or units while engaged in the disposition
of human bodies under ORS 97.010 to 97.040, 97.110 to 97.450,
97.510 to 97.730, 97.810 to 97.920 and 97.990 { + or an employee
of the nonlicensed individual performing similar activities + }.
(k) { + A nonlicensed individual who is + } a salaried
employee of the State of Oregon, or any of its political
subdivisions, engaging in professional real estate activity as a
part of such employment.
(L) A nonlicensed { - person, or a regular full-time employee
of the person, analyzing or advising of - } { + individual who
analyzes or provides advice regarding + }permissible land use
alternatives, environmental impact, building and use permit
procedures or demographic market studies { + , or a regular
full-time employee of the nonlicensed individual performing
similar activities + }. This exclusion does not apply to the
handling of transactional negotiations for transfer of an
interest in real estate.
(m) A hotelkeeper or innkeeper as defined by ORS 699.005
arranging the rental of transient lodging at a hotel or inn in
the course of business as a hotelkeeper or innkeeper.
(n) A travel agent arranging the rental of transient lodging at
a hotel or inn as defined in ORS 699.005 in the course of
business as a travel agent for compensation. For the purpose of
this paragraph, 'travel agent' means a person, and employees of
the person, regularly representing and selling travel services to
the public directly or indirectly through other travel agents.
(o) A common carrier arranging the rental of transient lodging
at a hotel or inn as defined in ORS 699.005 in the course of
business as a common carrier. For the purpose of this paragraph,
'common carrier' means a person { - who - } { + that + }
transports or purports to be willing to transport
{ - persons - } { + individuals + } from place to place by
rail, motor vehicle, boat or aircraft for hire, compensation or
consideration.
(p) A hotel representative arranging the rental of transient
lodging at a hotel or inn as defined in ORS 699.005 in the course
of business as a hotel representative. For the purpose of this
paragraph, 'hotel representative' means a person { - who - }
{ + that + } provides reservations or sale services to
independent hotels, airlines, steamship companies and government
tourist agencies.
(q) A { - nonlicensed - } person transferring or acquiring
an interest in real estate owned or to be owned by the person.
(r) A general partner for a domestic or foreign limited
partnership duly registered and operating within this state under
ORS chapter 70 engaging in the sale of limited partnership
interests and the acquisition, sale, exchange, lease, transfer or
management of the real estate of the limited partnership.
(s) A membership camping contract broker or salesperson
registered with the Real Estate Agency selling membership camping
contracts.
(t) A professional forester or farm manager engaging in
property management activity on { - forest or farm land - }
{ + forestland or farmland + } when the activity is incidental
to the nonreal estate duties involving overall management of
forest or farm resources.
(u) A registered investment adviser under the Investment
Advisers Act of 1940, 15 U.S.C. s80b-1 et seq., rendering real
estate investment services for the office of the State Treasurer
or the Oregon Investment Council.
(v) A nonlicensed { - person referring - } { + individual
who refers + } a new tenant for compensation to a real estate
licensee acting as the property manager for a residential
building or facility while the { - person - }
{ + individual + } resides in the building or facility or within
six months after termination of the { - person's - }
{ + individual's + } tenancy.
(w) A nonlicensed { - person giving - } { + individual who
gives + } an opinion in an administrative or judicial proceeding
regarding the value of real estate for taxation or representing a
taxpayer under ORS 305.230 or 309.100.
(x) A { - nonlicensed - } person acting as a paid fiduciary
whose real estate activity is limited to negotiating or closing a
transaction to obtain the services of a real estate licensee.
(y) A { - nonlicensed - } person acting as a fiduciary under
a court order, without regard to whether the court order
specifically authorizes real estate activity.
(z) A financial institution or trust company, as those terms
are defined in ORS 706.008, { + or an individual representative
of the financial institution or trust company, + } acting as
attorney in fact under a duly executed power of attorney from the
owner or purchaser authorizing real estate activity, if the power
of attorney is recorded in the office of the county clerk for the
county in which the real estate to be sold, leased or exchanged
is located.
(2) The vesting of title to real estate in more than one person
by tenancy by the entirety, tenancy in common or by survivorship
shall be construed as that of a single owner for the purposes of
this section.
SECTION 8. ORS 696.205 is amended to read:
696.205. (1) If a real estate licensee who is a sole
practitioner or who is the sole principal real estate broker of a
real estate business dies or becomes incapacitated, the Real
Estate Commissioner may issue a temporary license to the
executor, administrator or personal representative of the estate
of the deceased real estate licensee or to the court-appointed
fiduciary of the incapacitated real estate licensee, or to some
other
{ - person - } { + individual + } designated by the
commissioner, in order to continue to transact the real estate
business in the case of the incapacitated real estate licensee or
to wind up the affairs of the deceased or incapacitated real
estate licensee. The term of a temporary license issued under
this section may not exceed one year from the date of issuance
unless the commissioner, in the discretion of the commissioner,
extends the term of the temporary license based on sufficient
cause provided by the temporary licensee to the commissioner.
(2) The Real Estate Agency may adopt administrative rules to
administer this section or to authorize { - a person - }
{ + an individual + } to transact or wind up real estate
business on behalf of the deceased or incapacitated real estate
licensee.
SECTION 9. ORS 696.241 is amended to read:
696.241. (1) Each sole practitioner and each principal real
estate broker shall maintain in this state one or more separate
bank accounts that shall be designated a Clients' Trust Account
in which all trust funds received or handled by the sole
practitioner or broker and the real estate licensees subject to
the supervision of the broker on behalf of any other person shall
be deposited unless, pursuant to written agreement of all parties
having an interest in the trust funds, the trust funds are
immediately placed in a neutral escrow depository in this state.
(2) Each sole practitioner or principal real estate broker
shall file with the Real Estate Agency, on forms approved by the
Real Estate Commissioner, a statement identifying the name of the
bank or banks, account number or account numbers, and name of
account or accounts for each Clients' Trust Account maintained.
(3) Each sole practitioner or principal real estate broker
shall authorize the agency, by a form approved by the
commissioner, to examine any Clients' Trust Account, by a duly
authorized representative of the agency. The examination shall be
made at such times as the commissioner may direct.
(4) If a sole practitioner or principal real estate broker
maintains a separate Clients' Trust Account in a branch office, a
separate bookkeeping system shall be maintained in the branch
office, provided a copy of the records required by the provisions
of ORS 696.280 are maintained in the main office of the sole
practitioner or broker.
(5) Trust funds received by a sole practitioner or principal
real estate broker may be placed by the sole practitioner or
broker in a federally insured interest-bearing bank account,
designated a Clients' Trust Account, but only with the prior
written approval of all parties having an interest in the trust
funds. The earnings of such interest-bearing account shall not
inure to the benefit of the sole practitioner or principal real
estate broker unless expressly approved in writing before deposit
of the trust funds by all parties having an interest in the trust
funds.
(6) With prior written notice to all parties who have an
interest in the trust funds, a sole practitioner or principal
real estate broker may place trust funds received by the sole
practitioner or principal real estate broker in a federally
insured interest-bearing bank account that is designated a
Clients' Trust Account and the earnings of which inure to the
benefit of a public benefit corporation, as defined in ORS
65.001, for distribution to organizations and individuals for
first-time homebuying assistance and for development of
affordable housing. The sole practitioner or principal real
estate broker shall select a qualified public benefit corporation
to receive the interest earnings.
(7) A sole practitioner or principal real estate broker is not
entitled to any part of any interest earnings on trust funds
deposited under subsection (5) of this section or to any part of
the earnest money or other money paid to the sole practitioner or
broker in connection with any real estate transaction as part or
all of the sole practitioner's or broker's commission or fee
until the transaction has been completed or terminated. The
question of the disposition of forfeited earnest money shall be
negotiated between the sole practitioner or principal real estate
broker and the seller at the time of executing any listing
agreement or earnest money agreement. The result of such
negotiation shall be filled in on the agreement form at the time
of signing by the seller and either separately initialed by the
seller or placed immediately above the signature of the seller.
(8) Clients' Trust Account funds are not subject to execution
or attachment on any claim against a sole practitioner or
principal real estate broker.
(9) { - No person shall - } { + A sole practitioner or
principal real estate broker may not + } knowingly keep or cause
to be kept any funds or money in any bank under the heading of
Clients' Trust Account or any other name designating such funds
or money as belonging to the clients of any sole practitioner or
principal real estate broker, except actual trust funds deposited
with the sole practitioner or broker.
(10) The agency by rule shall establish a procedure for
disbursal of disputed funds from a Clients' Trust Account to the
person who delivered the funds to the sole practitioner or
principal real estate broker. The procedure shall allow disbursal
not more than 20 days after a request is made for the disbursal.
Any disbursal pursuant to the procedure does not affect the claim
of any other person to the funds.
(11) The agency may provide by { - rules - } { + rule + }
for other records to be maintained and for the manner in which
trust funds are deposited, held and disbursed.
SECTION 10. ORS 696.301 is amended to read:
696.301. Subject to ORS 696.396, the Real Estate Commissioner
may suspend or revoke the real estate license of any real estate
licensee, reprimand any licensee or deny the issuance or renewal
of a license to an applicant who has done any of the following:
(1) Created a reasonable probability of damage or injury to a
person by making one or more material misrepresentations or false
promises in a matter related to professional real estate
activity.
(2) Represented, attempted to represent or accepted a
commission or other compensation from a principal real estate
broker other than the principal real estate broker with whom the
real estate broker is associated.
(3) Disregarded or violated any provision of ORS 659A.421,
696.010 to 696.495, 696.600 to 696.785 and 696.800 to 696.870 or
any rule of the Real Estate Agency.
(4) Knowingly or recklessly published materially misleading or
untruthful advertising.
(5) Acted as an agent and an undisclosed principal in any
transaction.
(6) Intentionally interfered with the contractual relations of
others concerning real estate or professional real estate
activity.
(7) Intentionally interfered with the exclusive representation
or exclusive brokerage relationship of another licensee.
(8) Accepted employment or compensation for the preparation of
a competitive market analysis or letter opinion that is
contingent upon reporting a predetermined value or for real
estate in which the licensee had an undisclosed interest.
(9) Represented a taxpayer as described in ORS 305.230 or
309.100, contingent upon reporting a predetermined value or for
real estate in which the licensee had an undisclosed interest.
(10) Failed to ensure, in any real estate transaction in which
the licensee performed the closing, that the buyer and seller
received a complete detailed closing statement showing the amount
and purpose of all receipts, adjustments and disbursements.
(11) Has been convicted of a felony or misdemeanor
substantially related to the licensee's trustworthiness or
competence to engage in professional real estate activity.
(12) Demonstrated incompetence or untrustworthiness in
performing any act for which the licensee is required to hold a
license.
(13) Violated a term, condition, restriction or limitation
contained in an order issued by the commissioner.
(14) Committed an act of fraud or engaged in dishonest conduct
substantially related to the fitness of the applicant or licensee
to conduct professional real estate activity, without regard to
whether the act or conduct occurred in the course of professional
real estate activity.
(15) Engaged in any conduct that is below the standard of care
for the practice of professional real estate activity in Oregon
as established by the community of { - persons - }
{ + individuals + } engaged in the practice of professional real
estate activity in Oregon.
SECTION 11. ORS 696.315 is amended to read:
696.315. { - No - } { + A + } real estate licensee
{ - shall - } { + may not + } knowingly permit { - any
person whose license has been revoked or suspended - } { + a
nonlicensed individual + } to engage in professional real estate
activity, with or on behalf of the licensee.
SECTION 12. ORS 696.365 is amended to read:
696.365. (1) A city or county { - shall - } { + may + } not
impose { + a business license tax on + } or collect a business
license tax from { - a person - } { + an individual + }
licensed as a real estate broker who engages in professional real
estate activity only as an agent of a principal real estate
broker.
(2) As used in this section, 'business license tax' has the
meaning given that term in ORS 701.015.
SECTION 13. ORS 696.375 is amended to read:
696.375. (1) The Real Estate Agency is established.
(2) The Real Estate Agency shall be under the supervision and
control of an administrator who shall be known as the Real Estate
Commissioner. The Governor shall appoint the Real Estate
Commissioner who shall have been, before the date of appointment,
for five years a real estate broker or principal real estate
broker actively engaged in business as such in this state. The
Governor also may appoint { - a person - } { + an
individual + } who has been actively connected with the
administration of the agency for at least one year as acting or
temporary commissioner. The commissioner shall hold office at the
pleasure of the Governor and shall be responsible for the
performance of the duties imposed upon the agency. The Real
Estate Commissioner shall receive such salary as may be provided
by law.
(3) The appointment of the commissioner is subject to
confirmation by the Senate in the manner prescribed in ORS
171.562 and 171.565.
(4) Before entering upon the duties of office the commissioner
shall give to the state a fidelity bond with one or more
corporate sureties authorized to do business in this state, or an
irrevocable letter of credit issued by an insured institution, as
defined in ORS 706.008, in either case in the sum fixed by the
Governor. The premium for the bond or the fee for the letter of
credit shall be paid by the agency.
SECTION 14. ORS 696.398 is amended to read:
696.398. (1) The Real Estate Commissioner may delegate to any
of the officers and employees of the Real Estate Agency to
exercise or discharge in the commissioner's name any power, duty
or function vested in or imposed upon the commissioner under this
chapter. The power to administer oaths and affirmations, subpoena
witnesses, take evidence and require the production of books,
papers, correspondence, memoranda, agreements or other documents
or records, and to sign notices and orders may be exercised by an
officer or employee of the agency only when specified in writing
by the commissioner and filed in the records of the Real Estate
Agency.
(2) An official act of { - a person - } { + an
individual + } acting in the commissioner's name and by authority
of the commissioner shall be deemed to be an official act of the
commissioner.
SECTION 15. ORS 696.511 is amended to read:
696.511. (1) A person may not directly or indirectly engage in
or carry on, or purport to engage in or carry on, the business of
an escrow agent { + , + } or act in the capacity of an escrow
agent { + , + }
{ - without first obtaining a - } { + unless the person holds
an active + } license as an escrow agent under the provisions of
ORS 696.505 to 696.590.
(2)(a) Every escrow agent before engaging in the escrow
business shall file in the office of the Real Estate Commissioner
an application for a license, in writing, verified by the
applicant and in the form prescribed by the commissioner. The
application must include the location of the agent's main office
and all branch offices in this state, the name or style of doing
business, the names, resident and business addresses of all
persons interested in the business as principals, partners,
elected officers, trustees and directors, specifying as to each
the person's capacity and title, the general plan and character
of business and the length of time the agent has been engaged in
business. Notification of changes in the information contained in
the application or in the ownership of the business must be
immediately filed with the commissioner.
(b) If the applicant is an individual, the applicant must be 18
years of age or older.
(3) For the initial license of an escrow agent, the
commissioner may require information and evidence the
commissioner considers necessary to demonstrate the applicant's
qualifications to transact escrow business including, but not
limited to, information regarding the applicant's financial
resources, the applicant's escrow business in another state or
the experience or training of employees in escrow business, or a
testimonial of an escrow agent licensed in this state. Subject to
subsection (4) of this section, an applicant:
(a) Who is an individual must demonstrate a minimum of three
years of experience in the administration of escrows within
Oregon or a state with comparable escrow laws; or
(b) Who is not an individual must demonstrate a minimum
collective experience among its personnel of three years in the
administration of escrows within Oregon or a state with
comparable escrow laws.
(4) The commissioner may waive the three-year experience
requirement in subsection (3) of this section for an applicant
who demonstrates other qualifications sufficient to ensure the
protection of the public.
(5) For the initial license or license renewal of an escrow
agent, the commissioner shall require fingerprints and a state or
nationwide criminal records check under ORS 181.534 of an
applicant for an initial license and may require fingerprints and
a state or nationwide criminal records check under ORS 181.534 of
an applicant for license renewal. The commissioner may require
additional information for an initial license or license renewal
under this subsection that the commissioner considers necessary
for protecting the public. For purposes of requiring fingerprints
and a criminal records check, 'applicant' means { - a
person - } { + an individual + } who has more than five percent
ownership interest in the escrow agency and the corporate
officers in direct control of escrow operations.
(6) For license renewal, an escrow agent shall provide:
(a) A certification of training, by which the applicant
certifies that the applicant provides escrow agency staff within
Oregon with an average of six hours or more of training per year
per permanent, full-time employee in subjects that bear directly
on the administration of escrows; and
(b) A statement identifying by name, address and telephone
number one or more individuals who can respond to the inquiries
of or referrals by the commissioner or the commissioner's
authorized representative regarding the applicant's escrow
business.
(7) The commissioner, if satisfied that the applicant should
not be refused a license under ORS 696.535, shall issue or renew
an escrow agent license for an applicant that complies with the
requirements of ORS 696.505 to 696.590.
(8) To qualify for issuance or renewal of an escrow agent
license, an applicant shall pay any outstanding civil penalties
or other moneys due and owing to the Real Estate Agency except
civil penalties or other moneys due that are the subject of
judicial or administrative review on the date of the application
for license or license renewal.
SECTION 16. ORS 696.600 is amended to read:
696.600. As used in ORS 696.392, 696.600 to 696.785 and
696.995:
(1) 'Employee' includes an individual who has an independent
contractual relationship with a real estate marketing
organization and performs real estate marketing activity.
(2) 'Real estate marketing activity' means procuring or
offering to procure prospects to purchase, sell, lease or rent
real estate by telemarketing, mail or otherwise.
(3) 'Real estate marketing organization' means any person,
including a partnership, association, corporation, limited
liability company or other organization, other than a real estate
marketing employee, that engages in real estate marketing
activity and is licensed under ORS 696.606.
(4)(a) 'Real estate marketing employee' means an individual who
receives compensation from a real estate marketing organization
for performing real estate marketing activity.
(b) 'Real estate marketing employee' does not { - include a
person - } { + mean an individual + } licensed under ORS
696.022.
SECTION 17. ORS 696.609 is amended to read:
696.609. ORS 696.392, 696.600 to 696.785 and 696.995 do not
apply to { - a person - } { + an individual + } licensed
under ORS 696.022 or to those persons exempt under ORS 696.030
from licensing under ORS 696.020.
SECTION 18. ORS 696.710 is amended to read:
696.710. (1) { - A person - } { + An individual + } engaged
in the business of, or acting in the capacity of, a real estate
broker or principal real estate broker within this state
{ - shall - } { + may + } not bring or maintain any action in
the courts for the collection of compensation without alleging
and proving that the { - person - } { + individual + } was a
licensed broker { - at the time - } { + when + } the alleged
cause of action arose.
(2) An action in the courts for collection of compensation for
an individual engaged in the business of, or acting in the
capacity of { + , + } a real estate broker associated with a
principal real estate broker may not be brought or maintained
except by the principal real estate broker with whom the real
estate broker was associated { - at the time - } { + when + }
the alleged cause of action arose.
SECTION 19. ORS 696.730 is amended to read:
696.730. Any court of competent jurisdiction, including a
justice court, has full power to hear any violation of ORS
696.010 to 696.495, 696.600 to 696.785, 696.800 to 696.870 and
696.995 by
{ - persons - } { + an individual + } licensed under ORS
696.022, and, upon finding { - such - } { + a + } violation,
the court may, at its discretion and in addition to the other
penalties imposed, revoke the license of the { - person or
persons - } { + individual + } found to have violated any
provision of ORS 696.010 to 696.495, 696.600 to 696.785, 696.800
to 696.870 and 696.995. The clerk of the court shall forward a
copy of any order revoking a real estate license to the Real
Estate Commissioner.
SECTION 20. ORS 696.775 is amended to read:
696.775. The lapsing or suspension of a { + real estate + }
license, whether by operation of law, order of the Real Estate
Commissioner, decision of a court of law, inactive status of the
license or voluntary surrender of the license by the { + real
estate + } licensee, does not deprive the commissioner of
jurisdiction to:
(1) Proceed with an investigation of the licensee;
(2) Conduct disciplinary proceedings relating to the licensee;
(3) Take action against a licensee, including assessment of a
civil penalty against the licensee for a violation of ORS 696.020
(1); or
(4) Revise or render null and void an order suspending or
revoking a license.
SECTION 21. ORS 696.800 is amended to read:
696.800. As used in ORS 696.392, 696.600 to 696.785, 696.800 to
696.870 and 696.995, unless the context requires otherwise:
(1) 'Agent' means:
(a) A real estate broker or principal real estate broker who
has entered into:
(A) A listing agreement with a seller;
(B) A service contract with a buyer to represent the buyer; or
(C) A disclosed limited agency agreement; or
(b) { - A person - } { + An individual + } licensed under
ORS 696.022 who has entered into a written contract with a real
estate broker or principal real estate broker to act as the
broker's agent in connection with acts requiring a real estate
license and to function under the broker's supervision.
(2) 'Buyer' means a potential transferee in a real property
transaction, and includes a person who:
(a) Executes an offer to purchase real property from a seller
through an agent; or
(b) Enters into an exclusive representation contract or buyer's
service agreement with a real estate broker or principal real
estate broker, whether or not a sale or transfer of property
results.
(3) 'Confidential information' means information communicated
to a real estate licensee or the licensee's agent by the buyer or
seller of one to four residential units regarding the real
property transaction, including but not limited to price, terms,
financial qualifications or motivation to buy or sell. '
Confidential information' does not mean information that:
(a) The buyer instructs the licensee or the licensee's agent to
disclose about the buyer to the seller or the seller instructs
the licensee or the licensee' agent to disclose about the seller
to the buyer; and
(b) The licensee or the licensee's agent knows or should know
failure to disclose would constitute fraudulent representation.
(4) 'Disclosed limited agency' means a real property
transaction in which the representation of a buyer and seller or
the representation of two or more buyers occurs within the same
real estate business.
(5) 'Listing agreement' means a contract between a seller of
real property and a real estate broker or principal real estate
broker by which the broker has been authorized to act as an agent
of the seller for compensation to offer the real property for
sale or to find and obtain a buyer.
(6) 'Listing price' means the amount expressed in dollars,
specified in the listing agreement, for which the seller is
willing to sell the real property through the listing agent.
(7) 'Offer' means a written proposal executed by a buyer for
the sale or lease of real property.
(8) 'Offering price' is the amount expressed in dollars
specified in an offer to purchase for which the buyer is willing
to buy the real property.
(9) 'Principal' means the person who has permitted or directed
an agent to act on the principal's behalf. In a real property
transaction, this generally means the buyer or the seller.
(10) 'Real property' means any estate in real property,
including a condominium as defined in ORS 100.005, a timeshare
property as defined in ORS 94.803 and the granting of an option
or right of first refusal. 'Real property' also includes a
manufactured structure, as defined in ORS 446.561, owned by the
same person who owns the land upon which the manufactured
structure is situated. 'Real property' does not include a
leasehold in real property.
(11) 'Real property transaction' means a transaction regarding
real property in which an agent is employed by one or more of the
principals to act in that transaction and includes but is not
limited to listing agreements, buyer's service agreements,
exclusive representation contracts and offers to purchase.
(12) 'Sale' or 'sold' refers to a transaction for the transfer
of real property from the seller to the buyer and includes:
(a) Exchanges of real property between the seller and the buyer
and third parties; and
(b) Land sales contracts.
(13) 'Seller' means a potential transferor in a real property
transaction and includes an owner:
(a) Who enters into a listing agreement with a real estate
broker or principal real estate broker, whether or not a transfer
results; or
(b) Who receives an offer to purchase real property, of which
the seller is the owner, from an agent acting on behalf of a
buyer.
SECTION 22. ORS 696.110 is amended to read:
696.110. The provisions of ORS 696.010 to 696.495, 696.600 to
696.785, 696.800 to 696.870 and 696.995 shall be exclusive and no
political subdivision or agency of this state shall require or
issue any license or charge any fee for licensing or regulation
of
{ - persons - } { + individuals + } licensed under ORS
696.022. Nothing in this section shall limit the authority of a
county, city or town to levy and collect a general and
nondiscriminatory license fee upon all businesses in the county,
city or town or to levy a tax based upon the business conducted
by any licensee or firm within the county, city or town.
SECTION 23. ORS 696.990 is amended to read:
696.990. (1) Violation of any provision of ORS 696.010 to
696.130, 696.200, 696.205, 696.241 to 696.375, 696.392, 696.395
to 696.430, 696.490, 696.600 to 696.785 and 696.995 is a Class A
misdemeanor.
(2) Any officer, director or shareholder or agent of a
corporation, or member or agent of a partnership or association,
who personally participates in or is an accessory to any
violation of ORS 696.010 to 696.130, 696.200, 696.205, 696.241 to
696.375, 696.392, 696.395 to 696.430, 696.490, 696.600 to 696.785
and 696.995 by the partnership, association or corporation, is
subject to the penalties prescribed in subsection (1) of this
section.
(3) A violation of any one of the provisions of ORS 696.505 to
696.590 is a Class A misdemeanor.
(4) Any person { - who - } { + that + } violates ORS
696.020 (1) may be required by the Real Estate Commissioner to
forfeit and pay to the General Fund of the State Treasury a civil
penalty in an amount determined by the commissioner of:
(a) Not less than $100 nor more than $500 for the first offense
of unlicensed professional real estate activity; and
(b) Not less than $500 nor more than $1,000 for the second and
subsequent offenses of unlicensed professional real estate
activity.
(5) In addition to the civil penalty set forth in subsection
(4) of this section, any person { - who - } { + that + }
violates ORS 696.020 may be required by the commissioner to
forfeit and pay to the General Fund of the State Treasury a civil
penalty in an amount determined by the commissioner but not to
exceed the amount by which such person profited in any
transaction { - which - } { + that + } violates ORS 696.020.
(6) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
(7) The civil penalty provisions of subsections (4) and (5) of
this section are in addition to and not in lieu of the criminal
penalties for unlicensed professional real estate activity in
subsections (1) and (2) of this section.
(8) For the purposes of subsection (4) of this section, any
violation of ORS 696.020 (1) that results from a failure of a
real estate licensee to renew a license within the time allowed
by law constitutes a single offense of unlicensed professional
real estate activity for each 30-day period after expiration of
the license during which the { - person - } { +
individual + } engages in professional real estate
{ - activities - } { + activity + }. A civil penalty imposed
for a violation of ORS 696.020 (1) that results from a failure of
a real estate licensee to renew a license within the time allowed
by law is not subject to the minimum dollar amounts specified in
subsection (4) of this section.
(9) Subsection (5) of this section does not apply to a
violation of ORS 696.020 (1) that results from a failure of a
real estate licensee to renew a license within the time allowed
by law.
SECTION 24. ORS 9.160 is amended to read:
9.160. (1) Except as provided in this section, a person may not
practice law or represent that person as qualified to practice
law unless that person is an active member of the Oregon State
Bar.
(2) Subsection (1) of this section does not affect the right to
prosecute or defend a cause in person as provided in ORS 9.320.
(3) { - A person - } { + An individual + } licensed under
ORS 696.022 acting in the scope of the { - person's - }
{ + individual's + } license to arrange a real estate
transaction, including the sale, purchase, exchange, option or
lease coupled with an option to purchase, lease for a term of one
year or longer or rental of real property, is not engaged in the
practice of law in violation of subsection (1) of this section.
(4) A title insurer authorized to do business in this state, a
title insurance agent licensed under the laws of this state or an
escrow agent licensed under the laws of this state is not engaged
in the practice of law in violation of subsection (1) of this
section if, for the purposes of a transaction in which the
insurer or agent provides title insurance or escrow services, the
insurer or agent:
(a) Prepares any satisfaction, reconveyance, release,
discharge, termination or cancellation of a lien, encumbrance or
obligation;
(b) Acts pursuant to the instructions of the principals to the
transaction as scrivener to fill in blanks in any document
selected by the principals;
(c) Presents to the principals to the transaction for their
selection any blank form prescribed by statute, rule, ordinance
or other law; or
(d) Presents to the principals to the transaction for their
selection a blank form prepared or approved by a lawyer licensed
to practice law in this state for one or more of the following:
(A) A mortgage.
(B) A trust deed.
(C) A promissory note.
(D) An assignment of a mortgagee's interest under a mortgage.
(E) An assignment of a beneficial interest under a trust deed.
(F) An assignment of a seller's or buyer's interest under a
land sale contract.
(G) A power of attorney.
(H) A subordination agreement.
(I) A memorandum of an instrument that is to be recorded in
place of the instrument that is the subject of the memorandum.
(5) In performing the services permitted in subsection (4) of
this section, a title insurer, a title insurance agent or an
escrow agent may not draft, select or give advice regarding any
real estate document if those activities require the exercise of
informed or trained discretion.
(6) The exemption provided by subsection (4) of this section
does not apply to any acts relating to a document or form that
are performed by an escrow agent under subsection (4)(b), (c) or
(d) of this section unless the escrow agent provides to the
principals to the transaction a notice in at least 12-point type
as follows:
_________________________________________________________________
YOU WILL BE REVIEWING, APPROVING AND SIGNING IMPORTANT
DOCUMENTS AT CLOSING. LEGAL CONSEQUENCES FOLLOW FROM THE
SELECTION AND USE OF THESE DOCUMENTS. THESE CONSEQUENCES AFFECT
YOUR RIGHTS AND OBLIGATIONS. YOU MAY CONSULT AN ATTORNEY ABOUT
THESE DOCUMENTS. YOU SHOULD CONSULT AN ATTORNEY IF YOU HAVE
QUESTIONS OR CONCERNS ABOUT THE TRANSACTION OR ABOUT THE
DOCUMENTS. IF YOU WISH TO REVIEW TRANSACTION DOCUMENTS THAT YOU
HAVE NOT YET SEEN, PLEASE CONTACT THE ESCROW AGENT.
_________________________________________________________________
(7) The exemption provided by subsection (4) of this section
does not apply to any acts relating to a document or form that
are performed by an escrow agent under subsection (4)(b), (c) or
(d) of this section for a real estate sale and purchase
transaction in which all or part of the purchase price consists
of deferred payments by the buyer to the seller unless the escrow
agent provides to the principals to the transaction:
(a) A copy of any proposed instrument of conveyance between the
buyer and seller to be used in the transaction;
(b) A copy of any proposed deferred payment security instrument
between the buyer and seller to be used in the transaction; and
(c) A copy of any proposed promissory note or other evidence of
indebtedness between the buyer and seller to be used in the
transaction.
(8) The notice and copies of documents that must be provided
under subsections (6) and (7) of this section must be delivered
in the manner most likely to ensure receipt by the principals to
the transaction at least three days before completion of the
transaction. If copies of documents have been provided under
subsection (7) of this section and are subsequently amended,
copies of the amended documents must be provided before
completion of the transaction.
(9) Failure of any person to comply with the requirements of
subsections (3) to (8) of this section does not affect the
validity of any transaction and may not be used as a basis to
challenge any transaction.
SECTION 25. ORS 31.350 is amended to read:
31.350. (1) As used in this section, 'real estate licensee '
has the meaning given that term in ORS 696.010.
(2) A complaint, cross-claim, counterclaim or third-party
complaint asserting a claim of professional negligence against a
real estate licensee for conduct occurring within the course and
scope of the { - activities - } { + professional real estate
activity + } for which the { - person - } { + individual + }
is licensed may not be filed unless the claimant's attorney
certifies that the attorney has consulted a real estate licensee
who is qualified, available and willing to testify to admissible
facts and opinions sufficient to create a question of fact as to
the liability of the real estate licensee. The certification
required by this section must be filed with or be made part of
the original complaint, cross-claim, counterclaim or third-party
complaint. The certification must contain a statement that a real
estate licensee who is qualified to testify as to the standard of
care applicable to the alleged facts, is available and willing to
testify that:
(a) The alleged conduct of the real estate licensee failed to
meet the standard of professional care applicable to the real
estate licensee in the circumstances alleged; and
(b) The alleged conduct was a cause of the claimed damages,
losses or other harm.
(3) In lieu of providing the certification described in
subsection (2) of this section, the claimant's attorney may file
with the court at the time of filing a complaint, cross-claim,
counterclaim or third-party complaint an affidavit that states:
(a) The applicable statute of limitations is about to expire;
(b) The certification required under subsection (2) of this
section will be filed within 30 days after filing the complaint,
cross-claim, counterclaim or third-party complaint or such longer
time as the court may allow for good cause shown; and
(c) The attorney has made such inquiry as is reasonable under
the circumstances and has made a good faith attempt to consult
with at least one real estate licensee who is qualified to
testify as to the standard of care applicable to the alleged
facts, as required by subsection (2) of this section.
(4) Upon motion of the real estate licensee, the court shall
enter judgment dismissing any complaint, cross-claim,
counterclaim or third-party complaint against any real estate
licensee who fails to comply with the requirements of this
section.
(5) This section applies only to a complaint, cross-claim,
counterclaim or third-party complaint against a real estate
licensee by any plaintiff who:
(a) Has contracted with or otherwise employed the real estate
licensee; or
(b) Is a person for whose benefit the real estate licensee
performed services.
SECTION 26. ORS 94.977 is amended to read:
94.977. (1) Unless the transaction is exempt under ORS 94.962,
it is unlawful for any person to act as a salesperson or
membership camping contract broker in this state without first
registering as a salesperson or membership camping contract
broker as provided in ORS 94.980. { - Persons - }
{ + Individuals + } licensed as real estate brokers or principal
real estate brokers under ORS chapter 696 are exempt from
registration under this section.
(2) A violation of this section is a Class A misdemeanor.
SECTION 27. ORS 270.120 is amended to read:
270.120. (1) In exercising certain of its functions under ORS
184.634, 270.005 to 270.015, 270.100 to 270.190, 273.416, 273.426
to 273.436 and 273.551, the Oregon Department of Administrative
Services shall be advised by an advisory committee consisting of
seven members appointed by the Governor.
(2) The advisory committee appointed under subsection (1) of
this section shall consist of two members of the Legislative
Assembly, one { - person who is licensed - } { + real estate
licensee + } under ORS 696.020, two persons who serve in the
executive branch of state government, one person qualified as a
land use planner, and one person qualified as a real estate
management expert.
(3) Members of the advisory committee shall meet at such times
and places and elect such officers and make such rules for the
conduct of committee business as the committee may specify.
(4) Members of the advisory committee who are not members of
the Legislative Assembly are entitled to compensation under ORS
292.495. Members of the advisory committee who are members of the
Legislative Assembly shall be paid compensation and expense
reimbursement as provided in ORS 171.072, payable from funds
appropriated to the Legislative Assembly.
(5) Expenses of the committee shall be paid from funds
appropriated to the department to carry out subsection (6) of
this section.
(6)(a) The advisory committee shall advise the department on
the acquisition, exchange or disposal of real property valued at
$100,000 or more.
(b) The department may request the advice of the committee
involving any real property transaction valued less than
$100,000.
SECTION 28. ORS 305.230 is amended to read:
305.230. (1) Notwithstanding ORS 9.320:
(a) Any person who is qualified to practice law or public
accountancy in this state, any person who has been granted active
enrollment to practice before the Internal Revenue Service and
who is qualified to prepare tax returns in this state or any
person who is the authorized employee of a taxpayer and is
regularly employed by the taxpayer in tax matters may represent
the taxpayer before a tax court magistrate or the Department of
Revenue in any conference or proceeding with respect to the
administration of any tax.
(b) Any person who is licensed by the State Board of Tax
Practitioners or who is exempt from such licensing requirement as
provided for and limited by ORS 673.610 may represent a taxpayer
before a tax court magistrate or the department in any conference
or proceeding with respect to the administration of any tax on or
measured by net income.
(c) Any shareholder of an S corporation, as defined in section
1361 of the Internal Revenue Code, as amended and in effect on
December 31, 2004, may represent the corporation in any
proceeding before a tax court magistrate or the department in the
same manner as if the shareholder were a partner and the S
corporation were a partnership. The S corporation must designate
in writing a tax matters shareholder authorized to represent the
S corporation.
(d) { - Any person - } { + An individual + } who is
licensed as a real estate broker or principal real estate broker
under ORS 696.022 or is a state certified appraiser or state
licensed appraiser under ORS 674.310 or is a registered appraiser
under ORS 308.010 may represent a taxpayer before a tax court
magistrate or the department in any conference or proceeding with
respect to the administration of any ad valorem property tax.
(e) A general partner who has been designated by members of a
partnership as their tax matters partner under ORS 305.242 may
represent those partners in any conference or proceeding with
respect to the administration of any tax on or measured by net
income.
(f) Any person authorized under rules adopted by the department
may represent a taxpayer before the department in any conference
or proceeding with respect to any tax. Rules adopted under this
paragraph, to the extent feasible, shall be consistent with
federal law that governs representation before the Internal
Revenue Service, as federal law is amended and in effect on
December 31, 2004.
(g) Any person authorized under rules adopted by the tax court
may represent a taxpayer in a proceeding before a tax court
magistrate.
(2) A person may not be recognized as representing a taxpayer
pursuant to this section unless there is first filed with the
magistrate or department a written authorization, or unless it
appears to the satisfaction of the magistrate or department that
the representative does in fact have authority to represent the
taxpayer. A person recognized as an authorized representative
under rules or procedures adopted by the tax court shall be
considered an authorized representative by the department.
(3) A taxpayer represented by someone other than an attorney is
bound by all things done by the authorized representative, and
may not thereafter claim any proceeding was legally defective
because the taxpayer was not represented by an attorney.
(4) Prior to the holding of a conference or proceeding before
the tax court magistrate or department, written notice shall be
given by the magistrate or department to the taxpayer of the
provisions of subsection (3) of this section.
SECTION 29. ORS 446.676 is amended to read:
446.676. ORS 446.671 does not apply to the following
manufactured structures or persons:
(1) A unit of government or a public or private utility.
(2) The owner of a manufactured structure, as shown by a
document evidencing ownership issued by any jurisdiction if the
person owned the manufactured structure for personal, family or
household purposes. If the person sells, trades, displays or
offers for sale, trade or exchange two or more manufactured
structures during a calendar year, the person has the burden of
proving that the person owned the structures primarily for
personal, family or household purposes.
(3) A conservator, receiver, trustee, personal representative
or public officer while performing any official duties. The
exemption provided by this subsection applies to actions taken
for the purposes of winding up the affairs of a manufactured
structure dealer or dealership and not to the continuing
operation of a dealership.
(4) A real estate licensee representing a buyer or seller in a
transaction involving real property under ORS 308.875 or a
manufactured structure that is recorded in the deed records of a
county.
(5) An escrow agent making an application for an ownership
document as described under ORS 446.591 (5).
(6) The security interest holder of a manufactured structure as
shown by a document evidencing ownership issued by any
jurisdiction.
(7) The sale of a manufactured structure by the manufacturer to
a manufactured structure dealer. However, a manufacturer must
obtain a manufactured structure dealer license under ORS 446.691
in order to sell manufactured structures to retail customers.
(8) An insurance adjuster authorized to do business under ORS
744.505 or 744.515 who is disposing of a manufactured structure
for salvage.
(9) A person who sells or trades or offers to sell or trade a
manufactured structure that has been used in the operation of the
person's business unless the person's business is the buying,
selling, brokering, trading or exchanging of manufactured
structures, displaying new or used manufactured structures for
sale or acting as agent for an owner selling a manufactured
structure or for a person interested in buying a manufactured
structure.
(10) A person who is licensed as a manufactured structure
dealer in another jurisdiction and is participating in a
temporary exhibition of manufactured structures, if the
exhibition includes at least two other manufactured structure
dealers licensed in this state or another jurisdiction, lasts 10
days or less and charges admission to the public. An exemption
may be claimed under this subsection for a total of not more than
10 days during a calendar year.
(11) A person who receives no money, goods or services, either
directly or indirectly, for displaying a manufactured structure
or acting as an agent in the selling or buying of a manufactured
structure.
(12) A manufactured dwelling park or mobile home park owner
that consigns a manufactured structure for sale by a licensed
manufactured structure dealer.
(13) The sale of an abandoned manufactured dwelling by a
manufactured dwelling park owner pursuant to ORS 90.675 (10) if
the park owner makes a reasonable effort to transfer the title
for the manufactured dwelling to the purchaser.
(14) A licensed real estate { - agent - } { + broker + }
acting in the employ of, on behalf of or under the supervision of
{ - a person that - } { + an individual who + } is both a
licensed { + principal + } real estate broker and a licensed
manufactured structure dealer.
(15) A financial institution or trust company acting as
attorney in fact under a duly executed power of attorney from the
owner or purchaser authorizing the selling, leasing or exchanging
of the owner's or purchaser's assets. As used in this subsection,
' financial institution' and 'trust company' have the meanings
given those terms in ORS 706.008.
SECTION 30. ORS 646.382 is amended to read:
646.382. As used in ORS 646.382 to 646.398:
(1) 'Consumer' means any individual who is solicited to
purchase or who purchases the services of a credit services
organization.
(2)(a) 'Credit services organization' means any person who,
with respect to the extension of credit by others, sells,
provides, performs, or represents that the organization can or
will sell, provide or perform, in return for the payment of money
or other valuable consideration, any of the following services:
(A) Improving, saving or preserving a consumer's credit record,
history or rating.
(B) Obtaining an extension of credit for a consumer.
(C) Providing advice, assistance, instruction or instructional
materials to a consumer with regard to either subparagraph (A) or
(B) of this paragraph.
(b) 'Credit services organization' does not include:
(A) Any person authorized to make loans or extensions of credit
under the laws of this state or the United States who is subject
to regulation and supervision by this state or the United States
or a lender approved by the Secretary of Housing and Urban
Development for participation in any mortgage insurance program
under the National Housing Act.
(B) Any financial institution, financial holding company or
bank holding company as those terms are defined in ORS 706.008 or
any subsidiary or affiliate of a financial institution, financial
holding company or bank holding company.
(C) A mortgage banker or mortgage broker as defined in ORS
59.840.
(D) Any nonprofit organization exempt from taxation under
section 501(c)(3) of the Internal Revenue Code, provided that the
organization does not require a fee for its services and does not
receive any money or other valuable consideration prior to the
rendering of any services by the organization for the consumer.
(E) { - Any person - } { + An individual + } licensed as a
real estate broker or principal real estate broker by this state
if the
{ - person - } { + individual + } is acting within the course
and scope of that license.
(F) Any person licensed to practice law in this state if the
person renders services within the course and scope of practice
as an attorney.
(G) Any broker-dealer registered with the Securities and
Exchange Commission or the Commodity Futures Trading Commission
if the broker-dealer is acting within the course and scope of
that regulation.
(H) Any consumer reporting agency as defined in the Federal
Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.
(I) Any licensee licensed under ORS chapter 725.
(3) 'Department' means the Department of Consumer and Business
Services.
(4) 'Director' means the director of the department or the
director's designees.
(5) 'Extension of credit' means the right to defer payment of
debt or to incur debt and defer its payment offered or granted
primarily for personal, family or household purposes.
SECTION 31. ORS 646.605 is amended to read:
646.605. As used in ORS 646.605 to 646.652:
(1) 'Appropriate court' means the circuit court of a county:
(a) Where one or more of the defendants reside;
(b) Where one or more of the defendants maintain a principal
place of business;
(c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or
(d) With the defendant's consent, where the prosecuting
attorney maintains an office.
(2) 'Documentary material' means the original or a copy of any
book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
(3) 'Examination' of documentary material shall include
inspection, study, or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such
documentary material or copy thereof.
(4) 'Person' means natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and
any other legal entity except bodies or officers acting under
statutory authority of this state or the United States.
(5) 'Prosecuting attorney' means the Attorney General or the
district attorney of any county in which a violation of ORS
646.605 to 646.652 is alleged to have occurred.
(6) 'Real estate, goods or services' means those which are or
may be obtained primarily for personal, family or household
purposes, or which are or may be obtained for any purposes as a
result of a telephone solicitation, and includes franchises,
distributorships and other similar business opportunities, but
does not include insurance. Except as provided in section 2,
chapter 658, Oregon Laws 2003, real estate does not cover conduct
covered by ORS chapter 90.
(7) 'Telephone solicitation' means a solicitation where a
person, in the course of the person's business, vocation or
occupation, uses a telephone or an automatic dialing-announcing
device to initiate telephonic contact with a potential customer
and the person is not one of the following:
(a) A person who is a broker-dealer or salesperson licensed
under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security
qualified for sale pursuant to ORS 59.055;
(b) { - A person who is licensed or - } { + A real estate
licensee or a person who + } is otherwise authorized to engage in
professional real estate activity pursuant to ORS chapter 696,
when the solicitation involves professional real estate activity;
(c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;
(d) A person licensed or otherwise authorized to sell insurance
as an insurance producer pursuant to ORS chapter 744, when the
solicitation involves insurance;
(e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club
who complies with ORS 646.611, when the solicitation involves
newspapers, magazines or membership in a book or record club;
(f) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sales presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser;
(g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, 'supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial
finance lender or insurer that is subject to regulation by an
official or agency of this state or of the United States;
(h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or
preconstruction funeral or cemetery plans;
(i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local
or federal law, when the solicitation involves cable television
services;
(j) A person or affiliate of a person whose business is
regulated by the Public Utility Commission of Oregon;
(k) A person who sells farm products as defined by ORS chapter
576 if the solicitation neither intends to nor actually results
in a sale that costs the purchaser in excess of $100;
(L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
(m) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer when the solicitation involves answering services; or
(n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.
(8) 'Trade' and 'commerce' mean advertising, offering or
distributing, whether by sale, rental or otherwise, any real
estate, goods or services, and includes any trade or commerce
directly or indirectly affecting the people of this state.
(9) 'Unconscionable tactics' include, but are not limited to,
actions by which a person:
(a) Knowingly takes advantage of a customer's physical
infirmity, ignorance, illiteracy or inability to understand the
language of the agreement;
(b) Knowingly permits a customer to enter into a transaction
from which the customer will derive no material benefit; or
(c) Permits a customer to enter into a transaction with
knowledge that there is no reasonable probability of payment of
the attendant financial obligation in full by the customer when
due.
(10) A willful violation occurs when the person committing the
violation knew or should have known that the conduct of the
person was a violation.
(11) A loan is made 'in close connection with the sale of a
manufactured dwelling' if:
(a) The lender directly or indirectly controls, is controlled
by or is under common control with the seller, unless the
relationship is remote and is not a factor in the transaction;
(b) The lender gives a commission, rebate or credit in any form
to a seller who refers the borrower to the lender, other than
payment of the proceeds of the loan jointly to the seller and the
borrower;
(c) The lender is related to the seller by blood or marriage;
(d) The seller directly and materially assists the borrower in
obtaining the loan;
(e) The seller prepares documents that are given to the lender
and used in connection with the loan; or
(f) The lender supplies documents to the seller used by the
borrower in obtaining the loan.
SECTION 32. ORS 646.605, as amended by section 12, chapter 658,
Oregon Laws 2003, is amended to read:
646.605. As used in ORS 646.605 to 646.652:
(1) 'Appropriate court' means the circuit court of a county:
(a) Where one or more of the defendants reside;
(b) Where one or more of the defendants maintain a principal
place of business;
(c) Where one or more of the defendants are alleged to have
committed an act prohibited by ORS 646.605 to 646.652; or
(d) With the defendant's consent, where the prosecuting
attorney maintains an office.
(2) 'Documentary material' means the original or a copy of any
book, record, report, memorandum, paper, communication,
tabulation, map, chart, photograph, mechanical transcription, or
other tangible document or recording, wherever situate.
(3) 'Examination' of documentary material shall include
inspection, study, or copying of any such material, and taking
testimony under oath or acknowledgment in respect of any such
documentary material or copy thereof.
(4) 'Person' means natural persons, corporations, trusts,
partnerships, incorporated or unincorporated associations, and
any other legal entity except bodies or officers acting under
statutory authority of this state or the United States.
(5) 'Prosecuting attorney' means the Attorney General or the
district attorney of any county in which a violation of ORS
646.605 to 646.652 is alleged to have occurred.
(6) 'Real estate, goods or services' means those which are or
may be obtained primarily for personal, family or household
purposes, or which are or may be obtained for any purposes as a
result of a telephone solicitation, and includes franchises,
distributorships and other similar business opportunities, but
does not include insurance. Real estate does not cover conduct
covered by ORS chapter 90.
(7) 'Telephone solicitation' means a solicitation where a
person, in the course of the person's business, vocation or
occupation, uses a telephone or an automatic dialing-announcing
device to initiate telephonic contact with a potential customer
and the person is not one of the following:
(a) A person who is a broker-dealer or salesperson licensed
under ORS 59.175, or a mortgage banker or mortgage broker
licensed under ORS 59.850 when the solicitation is for a security
qualified for sale pursuant to ORS 59.055;
(b) { - A person who is licensed or - } { + A real estate
licensee or a person who + } is otherwise authorized to engage in
professional real estate activity pursuant to ORS chapter 696,
when the solicitation involves professional real estate activity;
(c) A person licensed or exempt from licensure as a builder
pursuant to ORS chapter 701, when the solicitation involves the
construction, alteration, repair, improvement or demolition of a
structure;
(d) A person licensed or otherwise authorized to sell insurance
as an insurance producer pursuant to ORS chapter 744, when the
solicitation involves insurance;
(e) A person soliciting the sale of a newspaper of general
circulation, a magazine or membership in a book or record club
who complies with ORS 646.611, when the solicitation involves
newspapers, magazines or membership in a book or record club;
(f) A person soliciting without the intent to complete and who
does not complete the sales presentation during the telephone
solicitation and who only completes the sales presentation at a
later face-to-face meeting between the solicitor and the
prospective purchaser;
(g) A supervised financial institution or parent, subsidiary or
affiliate thereof. As used in this paragraph, 'supervised
financial institution' means any financial institution or trust
company, as those terms are defined in ORS 706.008, or any
personal property broker, consumer finance lender, commercial
finance lender or insurer that is subject to regulation by an
official or agency of this state or of the United States;
(h) A person who is authorized to conduct prearrangement or
preconstruction funeral or cemetery sales, pursuant to ORS
chapter 692, when the solicitation involves prearrangement or
preconstruction funeral or cemetery plans;
(i) A person who solicits the services provided by a cable
television system licensed or franchised pursuant to state, local
or federal law, when the solicitation involves cable television
services;
(j) A person or affiliate of a person whose business is
regulated by the Public Utility Commission of Oregon;
(k) A person who sells farm products as defined by ORS chapter
576 if the solicitation neither intends to nor actually results
in a sale that costs the purchaser in excess of $100;
(L) An issuer or subsidiary of an issuer that has a class of
securities that is subject to section 12 of the Securities
Exchange Act of 1934 and that is either registered or exempt from
registration under paragraph (A), (B), (C), (E), (F), (G) or (H)
or subsection (g) of that section;
(m) A person soliciting exclusively the sale of telephone
answering services to be provided by that person or that person's
employer when the solicitation involves answering services; or
(n) A telecommunications utility with access lines of 15,000 or
less or a cooperative telephone association when the solicitation
involves regulated goods or services.
(8) 'Trade' and 'commerce' mean advertising, offering or
distributing, whether by sale, rental or otherwise, any real
estate, goods or services, and includes any trade or commerce
directly or indirectly affecting the people of this state.
(9) 'Unconscionable tactics' include, but are not limited to,
actions by which a person:
(a) Knowingly takes advantage of a customer's physical
infirmity, ignorance, illiteracy or inability to understand the
language of the agreement;
(b) Knowingly permits a customer to enter into a transaction
from which the customer will derive no material benefit; or
(c) Permits a customer to enter into a transaction with
knowledge that there is no reasonable probability of payment of
the attendant financial obligation in full by the customer when
due.
(10) A willful violation occurs when the person committing the
violation knew or should have known that the conduct of the
person was a violation.
(11) A loan is made 'in close connection with the sale of a
manufactured dwelling' if:
(a) The lender directly or indirectly controls, is controlled
by or is under common control with the seller, unless the
relationship is remote and is not a factor in the transaction;
(b) The lender gives a commission, rebate or credit in any form
to a seller who refers the borrower to the lender, other than
payment of the proceeds of the loan jointly to the seller and the
borrower;
(c) The lender is related to the seller by blood or marriage;
(d) The seller directly and materially assists the borrower in
obtaining the loan;
(e) The seller prepares documents that are given to the lender
and used in connection with the loan; or
(f) The lender supplies documents to the seller used by the
borrower in obtaining the loan.
SECTION 33. ORS 674.100 is amended to read:
674.100. (1)(a) A person may not engage in, carry on, advertise
or purport to engage in or carry on real estate appraisal
activity within this state without first obtaining certification,
licensure or registration as provided for in ORS 674.310.
(b) Real estate appraisal activity is the preparation,
completion and issuance of an opinion as to the value on a given
date or at a given time of real property or an interest in real
property, whether the activity is performed in connection with a
federally related transaction or is not performed in connection
with a federally related transaction. Notwithstanding any other
provision of law, a state certified appraiser or a state licensed
appraiser:
(A) Is not required to be licensed under ORS 696.022 to perform
real estate appraisal activity or any other activity that
constitutes the giving of an opinion as to the value of real
property or an interest in real property; and
(B) Is not subject to regulation under ORS 696.010 to 696.495
and 696.600 to 696.995 in connection with the performance of real
estate appraisal activity or the performance of any other
activity that constitutes the giving of an opinion as to the
value of real estate or an interest in real estate.
(2) Real estate appraisal activity excludes activity that is
not performed in connection with a federally related transaction
and that:
(a) Is performed by a nonlicensed regular full-time employee of
a single owner of real estate, if the activity involves the real
estate of the employer and is incidental to the employee's
normal, nonreal estate activities;
(b) Is performed by a nonlicensed regular full-time employee
whose activity involves the real estate of the employer, when the
activity is the employee's principal activity, but the employer's
principal activity or business is not the appraisal of real
estate;
(c) Is performed by an attorney at law rendering services in
the performance of duties as an attorney at law;
(d) Is performed by a registered geologist, registered
professional engineer or architect rendering services as a
registered geologist, registered professional engineer or
architect;
(e) Is performed by a certified public accountant rendering
services as a certified public accountant;
(f) Is performed by a mortgage banker rendering services as a
mortgage banker;
(g) Constitutes a letter opinion or a competitive market
analysis as those terms are defined in ORS 696.010 that, by
administrative or judicial order or subpoena, is compelled from
{ - a person - } { + an individual + } licensed to engage in
{ + professional + } real estate activity under ORS 696.022;
(h) Is performed by a salaried employee of the federal
government, the State of Oregon or a political subdivision of the
federal government or the State of Oregon while engaged in the
performance of the duties of the employee;
(i) Is limited to analyzing or advising of permissible land use
alternatives, environmental impact, building and use permit
procedures or demographic market studies, if the performance of
the activities does not involve the rendering of an opinion as to
the value of the real estate in question;
(j) Is performed by a professional forester appraising or
valuing timber, timberland or both as part of services performed
as a private consultant in forest management, but only if, in the
case of timberland, the appraisal or valuation is limited to the
use of the land as forestland;
(k) Is limited to giving an opinion in an administrative or
judicial proceeding regarding the value of real estate for
taxation;
(L) Is limited to giving an opinion regarding the value of real
estate by a person who is not licensed under ORS chapter 696, if
the person's business is not the appraisal, selling or listing of
real estate and the activity is performed without compensation.
This paragraph does not apply to a person conducting
transactional negotiations on behalf of another person for
transfer of an interest in real property;
(m) Is limited to transferring or acquiring an interest in real
estate by a person who is not licensed under ORS chapter 696; or
(n) Is performed by a home inspector acting within the scope of
a certificate or license issued under ORS chapter 701.
(3)(a) Real estate appraisal activity does not include an
analysis, evaluation, opinion, conclusion, notation or
compilation of data prepared by a financial institution or
affiliate, a consumer finance company licensed under ORS chapter
725 or an insurance company or affiliate, made for internal use
only by the financial institution or affiliate, consumer finance
company or the insurance company or affiliate, concerning an
interest in real estate for ownership or collateral purposes by
the financial institution or affiliate, the consumer finance
company licensed under ORS chapter 725 or the insurance company
or affiliate. Nothing in this subsection shall be construed to
excuse a financial institution or affiliate from complying with
the provisions of Title XI of the federal Financial Institutions
Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. 3310 et
seq.).
(b) As used in this subsection, 'evaluation' means a study of
the nature, quality or utility of a parcel of real estate or
interests in, or aspects of, real property in which a value
estimate is not necessarily required.
(4)(a) As used in this section, 'purport to engage in or carry
on real estate appraisal activity' means the display of a card,
sign, advertisement or other printed, engraved or written
instrument bearing the person's name in conjunction with the term
' appraiser,' 'licensed appraiser,' 'certified appraiser, ' '
appraiser assistant,' 'registered appraiser assistant' or '
appraisal' or an oral statement or representation of
certification, licensure or registration by the Appraiser
Certification and Licensure Board made by a person.
(b) Each display or statement described in paragraph (a) of
this subsection by a person not licensed, certified or registered
by the board is a separate violation under ORS 674.850 or
674.990.
(c) In a proceeding under ORS 674.850 or 674.990, a display or
statement described in paragraph (a) of this subsection shall be
considered prima facie evidence that the person named in the
display or making the statement purports to engage in or carry on
real estate appraisal activity.
SECTION 34. ORS 744.056 is amended to read:
744.056. (1) ORS 744.052 to 744.089 do not require an insurer
to obtain a license as an insurance producer as required by ORS
744.053. For purposes of this section, the term 'insurer' does
not include an insurer's officers, directors, employees,
subsidiaries or affiliates.
(2) A license as an insurance producer is not be required of
any of the following:
(a) An officer, director or employee of an insurer or an
insurance producer, if the officer, director or employee does not
receive any commission on or fee for policies written or sold to
insure risks residing, located or to be performed in this state
and:
(A) The officer's, director's or employee's activities are
executive, administrative, managerial, clerical or a combination
of these, and are only indirectly related to the sale,
solicitation or negotiation of insurance;
(B) The officer's, director's or employee's function relates to
underwriting, loss control, inspection or the processing,
adjusting, investigating or settling of a claim on a contract of
insurance; or
(C) The officer, director or employee is acting in the capacity
of an agency supervisor assisting insurance producers when the
person's activities are limited to providing technical advice and
assistance to insurance producers and do not include the sale,
solicitation or negotiation of insurance.
(b) A person who does either of the following, when the person
does not receive any commission or fee for the service:
(A) Secures and furnishes information for the purpose of group
life insurance, group property and casualty insurance, group
annuities or group or blanket health insurance or for the purpose
of enrolling individuals under plans, issuing certificates under
plans or otherwise assisting in administrative plans; or
(B) Performs administrative services related to mass-marketed
property and casualty insurance.
(c) An employer or an association of employers or its officers,
directors or employees, or the trustees of an employee trust
plan:
(A) To the extent that the employers, associations, directors,
officers, employees or trustees are engaged in the administration
or operation of a program of employee benefits for the employer's
or association's own employees or the employees of its
subsidiaries or affiliates;
(B) To the extent that the program of employee benefits
involves the use of insurance issued by an insurer; and
(C) As long as the employers, associations, officers,
directors, employees or trustees are not in any manner
compensated, directly or indirectly, by the insurer issuing the
insurance.
(d) An employee of an insurer or an organization employed by
insurers who is engaging in the inspection, rating or
classification of risks, or in the supervision of the training of
insurance producers and who is not individually engaged in the
sale, solicitation or negotiation of insurance.
(e) A person whose activities in this state are limited to
advertising without the intent to solicit insurance in this state
through communications in printed publications or electronic mass
media, the distribution of which is not limited to residents of
this state, but only if the person does not sell, solicit or
negotiate insurance that would insure risks residing, located or
to be performed in this state.
(f) A person who is not a resident of this state who sells,
solicits or negotiates a policy of insurance for commercial
property and casualty risks to an insured with risks located in
more than one state insured under that policy, but only if the
person is otherwise licensed as an insurance producer to sell,
solicit or negotiate that insurance in the state where the
insured maintains its principal place of business and the
contract of insurance insures risks located in that state.
(g) A salaried full-time employee who counsels or advises the
employer of the employee relative to the insurance interests of
the employer or of the subsidiaries or business affiliates of the
employer, but only if the employee does not sell or solicit
insurance or receive any commission.
(h) An attorney in fact of an authorized reciprocal insurer, or
the salaried representative of the insurer or attorney who does
not receive any commission.
(i) A person engaging in the lawful transaction of reinsurance.
(j) Salaried employees of title insurance producers or
insurers, except for the individual or individuals designated as
exercising the powers conferred by a title insurance producer's
license.
(k) Any agent or representative of persons exempt from the
Insurance Code under ORS 731.036 or holding a certificate of
exemption under ORS 731.042, with respect to the exempted
transactions.
(L) Any agent or representative of a fraternal benefit society
who devotes, or intends to devote, less than 50 percent of the
agent's or representative's time to the solicitation and
procurement of insurance policies for that society. Any person
who in the preceding calendar year has solicited and procured
life insurance policies on behalf of any fraternal benefit
society for an amount of insurance in excess of $50,000 or, in
the case of any other class or classes of insurance that the
society might write, on the persons of more than 25 individuals,
and who has received or will receive a commission or other
compensation therefor, shall be presumed to be devoting, or
intending to devote, 50 percent or more of the person's time to
the solicitation and procurement of insurance policies for that
society.
(m) { - A person - } { + An individual + } engaging in the
lawful transaction of home protection insurance if the
{ - person - } { + individual + } is a real estate licensee as
defined in ORS 696.010, and if the transaction of such insurance
by the { - person - } { + individual + } is subject to a
written contract, to which the insurer is a party, governing the
{ - person's - } { + individual's + } activities in the
transaction.
(n) Salaried employees of a financial institution or trust
company, as those terms are defined in ORS 706.008, who, in the
regular course of business with the customers of the financial
institution or trust company, present the customers with written
information about savings account annuities issued by an
authorized insurer. Any person who purchases such an annuity may
rescind the transaction within 10 days after the issuance of the
contract. For purposes of this paragraph, 'savings account
annuities' means annuities purchased with the proceeds of a
savings account, certificate or share in a financial institution
or trust company.
(3) A person who provides general insurance advice in
connection with providing other professional services such as
legal services, trust services, tax and accounting services,
financial planning or investment advisory services is not
considered to be soliciting the sale of insurance for the purpose
of the definition of 'insurance producer' in ORS 731.104.
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